John Banks will have a full trial on the charge that he knowingly filed a false donation declaration after his 2010 Auckland mayoral election defeat. That's not that surprising.

So John Banks is going to have to face his day in court (actually, more likely his week or more in court, given the number of witnesses that will be heard).

His attempt to have the charge against him - that he knowingly filed a false return of donations following the 2010 Auckland mayoral election - thrown out by the judge has failed. In and of itself, that really isn't so surprising.

The attempt, under the old s.347 of the Crimes Act, essentially required him to convince a judge that the Crown's case was so weak, with the evidence underpinning it so tenuous, that it would be unsafe to allow it to go to trial (as any possible conviction following that trial would be plain wrong). That then requires the judge to consider the Crown's case at its absolute strongest and ask, "if the Crown is able to prove all of this at trial, does it provide safe grounds for a conviction?"

And when you look at the Crown's case against Banks and assume that it can prove everything it alleges, then things look pretty bad for him. There is evidence that Banks was personally given a $15,000 cheque from Sky City (and even asked for a new one to his campaign account, when the first was written out to him personally). There is evidence that Banks personally requested a donation from Dotcom in a particular form (explicitly to allow him to treat it as anonymous) - and then thanked him afterwards for giving it, as well as refusing to help Dotcom following his arrest on the basis of how it might look given that donation's existence. And yet the donation return he signed lists all of this money as coming from sources that he "did not know".

Of course, that's taking the evidence that the Crown will present at its very strongest. Whether it holds up at trial is another matter. And against it is the evidence from both Mr Banks and his campaign treasurer, Mr Hutchison, that when it came to looking over the return of donations, Mr Banks did not really examine them at all. Meaning that, even if the return falsely called these donations "anonymous", Mr Banks may not have had actual knowledge of the error.

And that was the point that Mr Banks really hung his hat on in his attempt to have the case thrown out. Because if both Mr Banks and Mr Hutchison are saying that Mr Banks just didn't read the donation return, how on earth can the Crown safely prove he knew what it said was wrong? And if Mr Banks didn't "know" this, then he hasn't committed the offence alleged.

The Judge (Justice Wylie) wasn't buying that argument just yet. Certainly, the Crown will have to show that Mr Banks had the requisite "knowledge" that the return was wrong in order to get a conviction. However, he was not prepared to treat Mr Hutchison's evidence about what Mr Banks did (and didn't do) when they looked over the donations return together as determinative of that matter. There's a couple of reasons why not.

One is that Mr Hutchison's claimed memory of Mr Banks' examination of the donations return may be inaccurate, and in fact Mr Banks did look at it more closely than is said. That's an issue of witness credibility, and that's the sort of thing that only really gets assessed at trial when the witness gives evidence on the stand.

The second wasn't actually addressed in this decision. Because let's say it is true that Mr Banks really did not read the return of donations. But let's also assume (purely for the sake of a hypothetical) that Mr Banks deliberately failed to tell his treasurer that he knew full well who was donating him money, so that the treasurer could go ahead and list those donors as being "anonymous". (Maybe Mr Banks just failed to understand the law here, or maybe he was playing fast and loose with the rules.) In which case, can it be said Mr Banks "knew" that the return his treasurer drew up was false whether or not he read it, because it would have to fail to disclose the fact he knew the identity of some of his donors?

Now, I don't know whether this sort of "wilfull blindness" will be enough to sustain a conviction under the Local Electoral Act - as I say, the Court decided that there was sufficient evidence that Mr Banks might have had "actual knowledge" that the return was false to allow the trial to continue on that basis. But I do wonder if it more accurately reflects what happened here - if Mr Banks' apparent desire to stay separate from the details of where the money for his campaign came from may have tipped over into him failing to inform his fundraisers of what he himself knew about that process.

In any case, it's going to make for some fascinating courtroom theatre later this year. So purely from the perspective of a selfish voyeur (in the sense of "an obsessive observer of sordid or sensational subjects"), I'm glad Justice Wylie didn't put it to a premature end.

Comments (6)

I really don't understand how anyone can argue that they didn't have knowledge of the contents of a document that they signed.

Isn't it the whole point of the signature that the individual person affirms that they have read the document? Should I be omitting to read my contracts and personal declarations so that I can avoid liability for them later?

I really don't understand how anyone can argue that they didn't have knowledge of the contents of a document that they signed.

Because the relevant offence requires that you know what you signed was false, and a signature by itself doesn't demonstrate knowledge.

There also was a lesser offence of making a false return of donations without taking all reasonable precautions to make sure it was accurate. Banks would undoubtedly have committed this by signing without reading, but there was a time limit on prosecuting for it and this has lapsed.

But doesn't the signature usually affirm that the contwents of the document are true and correct? Certainly that's the case for tax forms - the signature affirms a declaration that you know the contents to be accurate. If he didn't know because he was merely slack, surely he's still guilty of making a false declaration (about his knowledge) on the return?

If he didn't know because he was merely slack, surely he's still guilty of making a false declaration (about his knowledge) on the return?

Well, I guess the best answer to this is that he hasn't been charged on that basis, and in fact the judge that heard Graeme McCready's private prosecution expressly rejected the claim that "because he signed it, he owns it". I just don't know enough about the relevant form to say anything more (i.e. I've no idea if it says "I hereby accept all responsibilty for the accuracy of the above", or similar).

"His attempt to have the charge against him - that he knowingly filed a false return of donations following the 2010 Auckland mayoral election..."

I assume that those witnesses whom are to be called to testify and how both the prosecution and the defence approach each witness in the course of their examination will no doubt in part give weight or not to either.

I make another assumption that a lot will depend on the interpretation, as required by law, under the Local Electoral Act 2001, Part 5 Electoral donations and expenses Subpart 1 - Electoral donations specifically section 103A of the Act

In this subpart and subpart 3, unless the context otherwise requires,—

anonymous, in relation to an electoral donation, means a donation that is made in such a way that the candidate who receives the donation—

(a)does not know the identity of the donor; and

(b)could not, in the circumstances, reasonably be expected to know the identity of the donor

contribution means any thing (being money or the equivalent of money or goods or services or a combination of those things) that makes up a donation or is included in a donation or has been used to wholly or partly fund a donation, and that—

(a)was given—

(i)to the donor; or

(ii)to a person who was required or expected to pass on all or any of its amount or value to the donor, whether directly or indirectly (for example, through 1 or more intermediaries, trustees, or nominees); and

(b)would have been a donation if it had been given directly to the candidate; and

(c)was given in the knowledge or expectation (whether by reference to a trust, an agreement, or an understanding) that it would be wholly or partly applied to make up, or to be included in, or to fund, a donation

contributor means a person who makes a contribution and who immediately before making the contribution—

(a)beneficially holds any money, or the equivalent of money, or any goods that make up the contribution or are included in the contribution; or

(b)provides any services that make up the contribution or are included in the contribution or pays for those services out of money that the person beneficially holds

donation funded from contributions means a donation that is made up of, includes, or is wholly or partly funded from 1 or more contributions

donor means a person who makes an electoral donation

electoral donation or donation means a donation (whether of money or of the equivalent of money or of goods or services or of a combination of those things) that is made to a candidate, or to any person on the candidate's behalf, for use in the candidate's campaign for election and—

(a)includes,—

(i)where goods or services are provided to a candidate, or to any person on the candidate's behalf, under a contract or an arrangement at a value that is less than their reasonable market value, the latter being a value that exceeds $300, the amount of the difference between the former value and the reasonable market value of those goods or services; and

(ii)where goods or services are provided by a candidate under a contract or an arrangement at a value that is more than their reasonable market value, the amount of the difference between that value and the reasonable market value of those goods or services; and

(b)excludes—

(i)the labour of any person that is provided to a candidate free of charge by that person; and

(ii)goods or services provided free of charge to a candidate, or to any person on the candidate's behalf, that have a reasonable market value of $300 or less

receive, in relation to a donation, means to get a donation that has been given or sent by—

(a)the donor directly; or

(b)the donor indirectly, via a transmitter

transmitter means a person to whom a donor gives or sends a donation for transmittal to a candidate.

Compare: 1993 No 87 s 207

Section 103A: inserted, on 29 June 2013, by section 30 of the Local Electoral Amendment Act 2013 (2013 No 40).

Subpart 3—Return of electoral donations and expenses

112AReturn of electoral donations and expenses

(1)Within 55 days after the day on which the successful candidates at any election are declared to be elected, every candidate at the election must file a return of electoral donations and expenses.

(2)However, in any case where a candidate is outside New Zealand on the day on which the successful candidates are declared to be elected (election result day), the return must be filed within 76 days after election result day.

(3)The return of electoral donations and expenses must set out—

(a)the details specified in subsection (4) in respect of every electoral donation (other than a donation of the kind referred to in paragraph (c)) received by the candidate that, either on its own or when aggregated with all other donations made by or on behalf of the same donor for use in the same campaign, exceeds $1,500 in sum or value; and

(b)whether any donation is funded from contributions, and if so, and to the extent known or ascertainable from the information supplied under section 103D, the details specified in subsection (5) in respect of every contribution that, either on its own or when aggregated with other contributions by the same contributor to the donation, exceeds $1,500 in sum or value; and

(c)the details specified in subsection (6) in respect of every anonymous electoral donation received by the candidate that exceeds $1,500; and

(d)details of the candidate's electoral expenses.

(4)The details referred to in subsection (3)(a) are—

(a)the name of the donor; and

(b)the address of the donor; and

(c)the amount of the donation or, in the case of aggregated donations, the total amount of the donations; and

(d)the date the donation was received or, in the case of aggregated donations, the date that each donation was received.

(5)The details referred to in subsection (3)(b) are—

(a)the name of the contributor; and

(b)the address of the contributor; and

(c)the amount of the contribution or, in the case of aggregated contributions, the total amount of the aggregated contributions.

(6)The details referred to in subsection (3)(c) are—

(a)the date the donation was received; and

(b)the amount of the donation; and

(c)the amount paid to the electoral officer under section 103J(1) or (2) and the date that payment was made.

(7)Every return filed under this section must be in the form prescribed in Schedule 2.

(8)It is the duty of every electoral officer to ensure that this section is complied with.

(9)In this section, file in relation to a return, means to send the return to the electoral officer responsible for the conduct of the election.

Compare: 1993 No 87 s 209

Section 112A: inserted, on 29 June 2013, by section 35 of the Local Electoral Amendment Act 2013 (2013 No 40).

Reading the Return of Electoral Donations and Expenses I note in Part 2 Return of Electoral Expenses it says

"I make the following of all electoral expenses incurred by me:"

"Well, I guess the best answer to this is that he hasn't been charged on that basis, and in fact the judge that heard Graeme McCready's private prosecution expressly rejected the claim that "because he signed it, he owns it". I just don't know enough about the relevant form to say anything more (i.e. I've no idea if it says "I hereby accept all responsibilty for the accuracy of the above", or similar)".

I am more than likely wrong but that form says, "...incurred by me:"

Then the candidate signs his hand written signature and dates the return and that signature I interpret as he/she "...owns it".

My own view is, it is about the interpretation of the adjective, "anonymous", i.e. Without knowledge of the identity of the contributor, and to me it means exactly that.